Every now and then in matters of divorce the issue of paternity arises. A husband during a divorce may question whether they truly are the father of the child subject to the suit. While at times this may be a valid question, under Texas law he is the father until proven otherwise. This is because Texas has what is called a presumption of paternity. This week we’ll discuss what this means and how to overcome it.

The presumption of paternity in Texas is a legal concept that assumes a man is the father of a child if he meets certain criteria. These criteria are listed Section 160.204 of the Texas Family Code, which include the following:

  1. Being married to the child’s mother when the child is born.
  2. Being married to the mother and the child is born before the 301st day after the marriage is terminated
  3. Marrying the mother after the child’s birth and making an assertion of paternity with the vital statistics unit or he voluntarily names himself as the child’s father on the birth certificate, or he promises in a record to support the child as his own.
  4. Continuously living in the household in which the child resided and representing to others that he is the child’s father during the first two years of the child’s life.

Should any of these situations apply, the Court will treat the man as the father until proven otherwise.

While the presumption of paternity provides a legal foundation, it is not set in stone and can be challenged. Individuals seeking to challenge this presumption have the opportunity to present evidence to the contrary. This could involve providing proof of biological non-paternity, demonstrating that the man did not meet the criteria for presumed paternity, or showing that someone else is the biological father. The key is that enough evidence has to be provided to the court in order for a finding to be made that the man is not the father. Genetic testing plays a crucial role. Modern DNA testing has made it possible to conclusively determine whether a man is the biological father of a child. Courts in Texas often rely on such evidence to make informed decisions in paternity disputes.

In family law the presumption of paternity goes beyond just determining biological relationships. It affects matters such as child custody, visitation rights, and child support obligations. If a man is presumed to be the father, he has a legal responsibility to provide financial support for the child and could also have a right to seek custody or visitation rights, but if he is not the father these rights and obligations go away. However, this does not happen automatically. A petition to terminate the parent-child relationship must be filed in order to ensure those rights and obligations are removed.